When the Witness Woofs

Posted on Categories Criminal Law & Process, Family Law, Judges & Judicial Process, Public

When a New York teenager had to testify against her father, claiming he raped and impregnated her, she shared the witness box with a helper.  According to The New York Times, that helper was Rosie, a specially trained golden retriever who comforts and encourages traumatized or stressed individuals.  Rosie has a highly developed sense of empathy, and will nuzzle, snuggle or lean against someone who is experiencing stress or trauma.  Psychologists sing the praises of service dogs like her, and courts in several states have ruled that witnesses who are especially vulnerable, such as children in sexual abuse cases, may be accompanied by canine helpers.

As you might imagine, approval of Rosie and dogs like her is not universal.  Everyone agrees that Rosie is adorable, but therein lies part of the alleged problem.  Defense attorneys fear that Rosie gives credibility to the child witness that may or may not be justified.  One of the public defenders in the case, David S. Martin, protested that each time the child witness stroked the dog’s fur, “it sent an unconscious message to the jury that she was under stress because she was telling the truth,” adding “There is no way for me to cross-examine the dog.”  Although the lawyer for the prosecution in this case refused to comment about Rosie for the article, Ellen O’Neill-Stephens, a Seattle prosecutor who is a proponent of dog-helpers in court, said “Sometimes the dog means the difference between a conviction and an acquittal.”

The past several decades have seen a great deal of discussion about the difficulty of dealing with child witnesses in a criminal trial, and there have been many judicial experiments – some effective and some not. 

The problem came to the fore in the 1980s when a slew of highly publicized child sexual abuse trials occurred.  The public jumped on the bandwagon of child protection and rallied around the cause: it was not unusual to see cars with bumper stickers reading “Listen to the children” and “Children don’t lie.”

Except sometimes, children do lie, and even more often, they tell what they think is the truth after adults (often well-meaning but sometimes malevolent) have questioned and probed and planted suggestions.  Gradually, the pendulum swung towards defendants’ rights, and beginning with Coy v. Iowa [finding an unconstitutional  denial of the right of confrontation when a statute presumed trauma to the witness in a child sexual assault trial, and the witnesses were allowed to testify from behind a screen that blocked their view of the defendant] and Maryland v. Craig [finding that child testimony via closed circuit television might be constitutionally allowed if there is a case-specific finding of necessity to prevent trauma and if there is adequate opportunity to cross-examine the witness], the U.S. Supreme Court required courts to make individualized findings about what might be necessary to help a traumatized witness while still allowing the defendant to exercise his constitutional right to confront witnesses against him.

Although many cases, including the aforementioned two, have addressed the issue of balancing rights of confrontation with the interests of child witnesses, it should be noted that a defendant’s right to a fair trial may be at stake here as well.   It is well-settled that a defendant’s right to a fair trial precludes the prosecution from unnecessarily manipulating the courtroom and its occupants so as to subtly convey that the defendant is guilty.  For example, a defendant cannot be compelled to undergo trial dressed in prison orange garb, and he must be offered acceptable street clothing for his appearances in court.  Failure to comply with these requirements can result in a mistrial or a new trial.  Moreover, witnesses against the defendant cannot just say nor do whatever they want in court – they must answer questions that comply with the rules of evidence about what is relevant and what is merely prejudicial.

From the defendant’s perspective, the concern with Rosie the dog and others like her is that the jury will conclude that the poor child witness must be telling the truth, otherwise she would not need Rosie’s encouragement so much.  Dog lovers – and there are many – tend to attribute human characteristics to dogs.  Surely a dog would not encourage a child witness to lie!  But the defense lawyers are right to point out that Rosie, by instinct or training or both, has learned to respond to stress or discomfort.  A child witness may well be feeling stress or discomfort, but it could come from truthful confrontation, from stage fright over speaking in front of a group, from fear of someone (but not necessarily the defendant), or even from lying, which is also very stressful for most people.  If the goodwill induced by the adorable Rosie leads jury members to believe only the best about the child witness and her motives, then the defendant might find it impossible to convince them otherwise.  True, the defense lawyers can cross-examine the child, but this must be done with kid gloves to avoid looking like a bully and actually hurting the defendant’s case.  The badgering, aggressive demolition of a teary child-witness exists only in certain TV scripts – any real lawyer would have to be insane to try anything of the sort.  Denigrating the dog in front of the jury probably wouldn’t be a good idea, either.

From the prosecution’s perspective, there are some human-shaped monsters out there that do very, very bad things to children – and those children are often terrified to testify.  If a golden retriever can comfort the child enough to get her story before the jury, then this seems like a practical solution.  It’s not like the dog is being presented as a witness to the crime, after all.  Of course, it’s clear that a cute dog reflects well on the witness, but really, how is this any different from having the child dress in a sweet, innocent-looking outfit, even if her normal attire is somewhat racier?  Everyone knows that eschewing orange prison attire isn’t the only sartorial decision being made in the courtroom.

Ultimately, this will have to be another balancing act overseen by judges.  Perhaps judges should be required to gently remind the jury that the dog is there to help the witness deal with stress, which could be the result of truth-telling, fabrication, stage-fright, or other factors.  Juries are useful precisely because they often revert to common sense –everyone knows that you are not necessarily a nice or honest person just because a dog likes you.  (Even Hitler and Stalin are reputed to have had dogs.)  If the dog becomes too active in the courtroom, the judge might need to intervene.   But overall, I think service dogs in the courtroom might be a very good thing indeed.

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